DUI Fatality- Why First Degree Murder is Appropriate

We have recently blogged about the tragic DUI fatality case
in which Ever Olivos-Gutierrez has been accused of driving drunk and
killing Juan Carlos Dominguez-Palomino, a 17 year old boy.
Olivos-Gutierrez is an illegal immigrant with several prior DUI and
Driving Under Suspension convictions. His blood alcohol content was 4
times above the legal limit, and he attempted to flee the scene after
the collision. These aggravating factors, as well as the high profile
nature of the case, have led Arapahoe County prosecutors to charge
Olivos-Gutierrez with First Degree Murder. You can read more about the
case here.
First Degree Murder is a very rare charge in this type of case, and its
use has created a spirited debate as to its propriety, and our blog
generated a lot of discussion. In this blog, we will discuss why this
charge is appropriate and provable. In a future blog, we will discuss
why it might be prosecutorial overreaching, and not provable.

First of all, it is important to note that there are several types of
ways First Degree Murder can be charged. What comes to mind of most
people when they think of First Degree Murder is premeditated murder,
which requires the suspect to have the intent to kill another person
after deliberation. This is NOT the way they are charging
Olivos-Gutierrez. He is being charged under an extreme indifference
theory. Specifically under this theory, the prosecution has to prove
that Olivos-Gutierrez, “under circumstances evidencing an attitude of
universal malice manifesting extreme indifference to the value of human
life generally, knowingly engaged in conduct which created a grave risk
of death to a person or persons other than himself, and thereby caused
the death of another.”

Notice that under this theory, intent is not a requirement; in other
words the prosecution doesn’t have to prove that Olivos-Gutierrez meant
to kill anyone. The prosecution will attempt, rather, to establish that
his conduct was so reckless and egregious that another person’s death
was inevitable. Can they prove it? Let’s look at the facts they will
rely on.

First of all, he’s done similar acts before with his prior DUI’s. He
is a repeat offender- something that the prosecution will want to pound
into the heads of the jury (you can bet the defense will try to keep
this information out of the trial). Second, he was highly intoxicated.
At 4 times the legal limit, the prosecutors will demonstrate that he
was in no position to drive. This is the conduct “which created a grave
risk of death to a person other than himself.”

Third, they will argue that his car became a deadly weapon destined
for disaster, much like placing a loaded gun on the carpet in a room
full of kindergarteners. Something terrible was foreseeable and
preventable, but he drove anyway. Fourth, he fled the scene. This is
the big one. He left his young victim to die in an attempt to avoid
responsibility. This is an important factor because it demonstrates
intent after the fact- the “universal malice” element. It shows that
Olivos-Gutierrez knew what he did and tried to get away with it.

The defense might argue that First Degree Murder as applied in this
case will cause a slippery slope, and that it sets up every DUI offender
to become a possible attempted murderer, but so what? Prosecutors
might see this as an opportunity to show the community that this crime
will not be tolerated in an effort to increase deterrence for drinking
and driving offenders. This stance may have community support- many
people in this community think Olivos-Gutierrez is the poster boy for
why our DUI laws are too lenient. Prosecutors will use this to their
advantage- this case evokes strong emotions of sympathy toward the
victim, and feelings of hostility and hatred toward Olivos-Gutierrez.
Putting this all together could result in a conviction for
Olivos-Gutierrez for First Degree Murder.

DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact Hebets & McCallin, and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.